Wilks v. New York Tel. Co.

• Decision Date: 09 July 1926
• Citation: 243 N.Y. 351,153 N.E. 444
• Parties: WILKS v. NEW YORK TELEPHONE CO. et al.
• Court: New York Court of Appeals Court of Appeals

243 N.Y. 351

153 N.E. 444

WILKS

v.NEW YORK TELEPHONE CO. et al.

Court of Appeals of New York.

July 9, 1926.

Action by Caroline Wilks as administratrix of the goods, chattels, and estate of Joseph Wilks, deceased, against the New York Telephone Company and another. The Appellate Division, Fourth Department, affirmed a judgment of the Trial Term, entered on a verdict for plaintiff (215 App. Div. 792, 213 N. Y. S. 327), and defendants appeal. Reversed, and complaint dismissed as to named defendant.

Reversed, and a new trial granted as to defendant Federal Telephone & Telegraph Company.

Pound and Crane, JJ., dissenting in part.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Thomas Penney, Jr., of Buffalo, Charles T. Russell, of New York City, Olin T. Nye, and Otto M. Buerger, both of Buffalo, for appellant New York Telephone Co.

Parton Swift, of Buffalo, for appellant Federal Telephone & Telegraph co.

La Fay C. Wilkie, of Buffalo, for respondent.

LEHMAN, J.

The plaintiff's intestate, Joseph Wilks, was killed on November 30, 1918, by accidental contact with a telephone wire. The wire had been strung a number of years before the accident across the premises occupied by the decedent from the roof of a building known as the Sherwood building to a point beyond some railway tracks on the other side of the decedent's premises. The wire broke during a windstorm. The fallen wire was originally erected and owned by the Federal Telephone & Telegraph Company. That company had transferred to the New York Telephone Company all its wires and equipment at midnight of February 28th, 1918, nine month before the accident. It was stipulated at the trial that ‘all the wires, poles, equipment, and all of the property of the New York Telephone Company, with the exception of its securities, was taken over by the United States government on the 31st day of July, 1918, pursuant to a proclamation of the President of the United States and of the Congress of the United States, and that the same were in the possession of, controlled and maintained and operated by, the United States government acting through and under the Postmaster General, from midnight of the 31st day of July, 1918, to midnight of the 31st day of July, 1919.’ The current which ordinarily passes through a wire erected for use in connection with a telephone system is not sufficient to cause serious shock or injury to any one who comes in contact with such wire. Plaintiff's intestate was killed because at the time he touched the wire a current of 2,200 volts was passing through it from a high-powered wire of the Buffalo General Electric Company.

The plaintiff has recovered a judgment for damages of $25,000 against the New York Telephone Company and the Federal Telephone & Telegraph Company. The judgment places liability for the death of plaintiff's intestate upon two corporations which at the time of that death were not using and had no control of the instrumentalitieswhich caused it. Though the New York Telephone Company still had title to the telephone system which the Federal Company had conveyed to it, it cannot be held liable for negligent operation of that system while in control of the United States government. Western Union Telegraph Co. v. Poston, 256 U. S. 662, 41 S. Ct. 598, 65 L. Ed. 1157. The Federal Company may certainly not be held liable for negligent use by another of an instrumentality which the Federal Company no longer owned or controlled. Liability in tort must by its nature be based upon proof of injury caused by wrongful act in which the person held responsible in some manner joined either personally or through agent or representative.

The complaint herein charges in effect that the Federal Telephone & Telegraph Company erected wires across the premises leased by the deceased without permission or right or easement and was a trespasser on such premises; that the wires were erected in such close proximity to highly charged electric wires that they created a dangerous situation and constituted a nuisance. It further charges that the New York Telephone Company accepted the wires and went into possession of the same and continued to maintain and operate the same long prior to July 1, 1918, with full knowledge that said wires had been erected and were being maintained in a dangerous manner. These allegations are sufficient to charge one defendant with the wrongful erection of a nuisance and the other defendant with wrongful maintenance of the nuisance. If these charges were proven, each defendant would of course be responsible for proximate consequences of its own wrong; but question would still remain whether the proximate consequences of the wrongs charged or proven could extend to the death of the plaintiff's intestate, occurring after both the defendants had ceased to use, and had lost control of, the wires which constitute the alleged nuisance, and when the defendants no longer had power or right to abate it.

The evidence is sufficient to establish that at the time of the accident the wire which caused death was attached to a fixture on the roof of the Sherwood building in such proximity to the high-powered wires of the Buffalo General Electric Company that it constituted a potential menace to life and was a nuisance. This condition existing at the time of the accident may be regarded as the final link in the chain of causation leading to the death of the plaintiff's intestate. For several months previous to the accident the United States government alone had control of the wire and power to maintain or change the conditions which constituted a nuisance. The question which the court must decide on this appeal is whether the wrongful acts charged against the defendants or either of them are so connected with the condition maintained by the government that in the chain of causation the later condition may be fairly regarded as the result of these acts.

At least so far as concerns the New York Telephone Company, it seems clear both upon principle and authority that it is without responsibility. It is not charged with the erection of the alleged nuisance. The theory of the complaint, as well as the theory upon which the case was tried and submitted to the jury, is that the Federal Telephone & Telegraph Company erected the nuisance. The fault of the New York Telephone Company, if any, is that it took possession of the nuisance when the Federal Telephone Company transferred the wires to it, and has maintained the nuisance after it had notice of its dangerous character. No actual notice was shown, but the jury was permitted to infer constructive notice from the fact that this defendant was in control of the wires for a period of five months, during which inspection made with reasonable care might have disclosed any dangers created by the situation. It may have been negligent in failing to discover and remedy this situation, but the plaintiff elected to try the case upon the theory of nuisance,not negligence, and in any event the defendant's negligence ceased when the control of the wires passed out of its control. From that time on it owed no duty to the plaintiff's intestate or to the public. The death of plaintiff's intestate occurred, not through the negligence of the New York Telephone Company while in possession of the wires, but through the continued maintenance of the wires in the same condition by officers of the United States government, upon whom the duty devolved of using reasonable care to discover and remedy a dangerous condition. These consideration seem to dictate the conclusion that the defendant New York Telephone Company was not liable upon the theory of nuisance, if at the time of the fatality it was not responsible for the continued maintenance of the nuisance.

A somewhat similar situation was presented in the case of Virginian Railway Company v. Mullens, 46 S. Ct. 526, 70 L. Ed. 915, decided by the Supreme Court of the United States May 24, 1926 (not yet reported officially). In that case there was evidence that the Virginian Railway Company purchased in 1907 a railroad constructed by another railway company. An embankment and track in the bed of a stream tended to obstruck and divert the current in such way as to constitute a nuisance. The court stated that the evidence ‘affirmatively and indubidutyprecluded a finding that the defendant constructed them or did more than use them as an integral part of a completed road which it had purchased as a going concern from a prior owner.’ It continued such use until the federal government took possession and assumed control of the railway on December 28, 1918. The Supreme Court of the United States held that it was not liable for injuries occasioned by the continued maintenance of the nuisance during the period of federal control.

‘Their maintenance and use during that period were exclusively in the hands of federal agents. If a duty rested on any one to make any change in them, it rested on the federal agents; and, if maintaining and using them without change was a wrong against the plaintiff, it was a wrong committed by those agents, for which no liability attached to the defendant.’

It is sought to distinguish that case from the one under...